On June 1, 2020, the Centers for Medicare & Medicaid Services (CMS) unveiled new measures designed to enhance enforcement and oversight of nursing homes and related state survey agencies. CMS announced the new policies concurrently with the release of federal data detailing the incidence of nursing home COVID-19 infections, which was also made available on the agency’s Nursing Home Compare website on June 4, 2020. The new policies include potential civil monetary penalties (CMPs) for nursing homes that fail to comply with federal infection control requirements, along with potential financial penalties for state survey agencies tasked with nursing home inspections.
Increased Penalties for Nursing Homes
CMS’s new policy expands enforcement against individual nursing homes that demonstrate federal infection control requirement deficiencies. Specifically, in each instance of at least “Substantial” non-compliance (Level D or above, based on CMS’s letter ratings for state nursing home surveys) by a recently cited nursing home, CMS will impose Directed Plans of Correction (DPOCs) and Discretionary Denials of Payment for New Admissions (DPNAs). The timeframe for remediation and extent of additional penalties depend on the nature of the non-compliance and the nursing home’s infection control compliance history, as follows:
- For “Substantial” non-compliance by a nursing home that has incurred one infection control deficiency citation in the last year, the facility will face up to $5,000 per citation if the latest non-compliance is not widespread (Levels D & E), or up to $10,000 per citation if the latest non-compliance is widespread (Level F).
- For “Substantial” non-compliance by a nursing home that has incurred two or more infection control deficiency citations in the last two years, the facility will face CMPs of up to $15,000 per citation if the latest non-compliance is not widespread (Levels D & E), or up to $20,000 if the latest non-compliance is widespread (Level F).
- For “Harm” level non-compliance (Levels G, H, I), regardless of the nursing home’s history, the facility will face CMPs at the highest amount option within the appropriate range under the CMP Analytic Tool.
- For “Immediate Jeopardy” level non-compliance (Levels J, K, L), regardless of the nursing home’s history, the facility will face termination and CMPs at the highest amount option within the appropriate range under the CMP Analytic Tool.
Expanded State Survey Guidance and Penalties
CMS’s new policy also ties $80 million of supplemental Coronavirus Aid, Relief, and Economic Security (CARES) Act funding to a state’s progress on completing focused infection control nursing home surveys, as follows:
- States that have not completed 100% of required focused infection control surveys by July 31, 2020, must submit a corrective action plan to CMS outlining their strategy for completion.
- If 100% of the required surveys are still not achieved 30 days after the state submits that corrective action plan, the state’s CARES Act fiscal year 2021 allocation may be reduced by up to 10%, and subsequent 30-day extensions may result in additional reductions up to 5%.
- The foregoing reductions would be redistributed to states that completed 100% of their focused infection control surveys by July 31, 2020.
CMS is also requiring states to use CARES Act funding to implement certain additional COVID-19 survey activities. A state’s failure to timely implement the following activities may result in the forfeiture of up to 5% of annual CARES Act allocations:
- Perform on-site surveys of nursing homes with previous COVID-19 outbreaks by the end of June 2020;
- Perform on-site surveys within 3 to 5 days of identification of any nursing home with: (a) 3 or more new COVID-19 suspected and confirmed cases, or (b) 1 confirmed resident case in a facility that was previously COVID-19 free; or
- Starting in fiscal year 2021, perform annual focused infection control surveys of 20% of nursing homes based on state discretion or additional data that identifies facility and community risks.
CMS is also encouraging states to expand survey activities for facilities that have entered “Phase 3” of the agency’s Nursing Home Re-opening guidance, including those that: (a) have had no new nursing home COVID-19 cases for 28 days, (b) are not experiencing staffing shortages, and (c) have adequate supplies of personal protective equipment (PPE) and access to COVID-19 testing. CMS also indicated that it will deploy its network of Quality Improvement Organizations (QIOs) to focus on assisting states and certain nursing homes with additional support and technical assistance, including through weekly “National Infection Control Trainings” and direct assistance to small and rural nursing homes.
CMS published a joint open letter with CDC, dated May 31, 2020, notifying state governors of the latest changes and penalties concerning nursing home inspections and compliance. The new policies became effective immediately on June 1, 2020, and will cease to be in effect when the Secretary determines there is no longer a COVID-19 Public Health Emergency.